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Frequently asked questions about expungement

The following are frequently asked questions about expungement and the application process.

Questions

Who is eligible to apply for expungement?

Persons convicted of an offence listed in the schedule attached to the legislation may be eligible to submit an application to the Parole Board of Canada (PBC) to have the judicial record of their conviction expunged.

For gross indecency, buggery and anal intercourse, or attempt to commit any of these eligible offences, the activity must have been consensual, and the participants must have been of the same sex and have been at least 16 years old at the time, or subject to a "close-in-age" defence under section 150.1 of the Criminal Code.

If the individual is deceased, an appropriate representative such as a close family member, common law partner, or trustee, can apply on their behalf.

What are the criteria for eligibility?

Applicants must provide evidence that the conviction meets certain criteria.

For gross indecency, buggery and anal intercourse, applicants must provide evidence that the same-sex participant(s) consented and were at least 16 years old at the time, or subject to a "close-in-age" defence under section 150.1 of the Criminal Code.

What is the cost for submitting an application to have a conviction expunged?

There is no processing fee for submitting an application.

Will other expenses be incurred by applicants (obtaining records, etc.)?

Costs may be incurred by applicants in terms of retrieving the documentation needed for their application. This could include, but is not limited to, the fee for requesting court and/or police documents, and fees associated with obtaining sworn statements/solemn declarations.

Who can apply for a posthumous expungement?

A number of categories of applicants are specifically identified in the legislation, including the person’s child, parent, brother or sister or legal representative (mandatary, trustee, tutor, curator, etc.). See the complete list under subsection 7(2) of the Act for more information. Evidence of the person’s death and the applicant’s relationship with this person will be required with the application.

Why is expungement available posthumously?

Given that most of the convictions eligible for expungement are a number of decades old, many of those eligible to apply for an expungement order may be deceased.

Expungement offers recognition that the eligible conviction was unjust and inconsistent with the rights now protected under the Canadian Charter of Rights and Freedoms. Under the Expungement Act, appropriate representatives can now apply for this recognition on behalf of the deceased person.

What could make an individual ineligible for an expungement?

If the offence committed by the potential applicant is not listed in the schedule of historical injustices eligible for expungement, or if the applicant is not an appropriate representative of a deceased individual, they will not be eligible to apply.

What happens if an individual was found guilty of buggery and received an absolute or conditional discharge under the Criminal Code?

The Criminal Records Act requires that records of discharge be removed from a criminal record within prescribed periods (e.g. if more than one year has elapsed since the offender was discharged absolutely or if more than three years have elapsed since the offender was discharged on the conditions prescribed in a probation order). If an absolute or conditional discharge was received before July 24, 1992, please contact the RCMP to have the information removed (RCMP Pardon & Purge Services).

What about other convictions the person might have? Will these convictions also be expunged?

No, should the individual have additional convictions that are unrelated to the schedule, these are not eligible for expungement and would remain on their record.

They may, however, be eligible for consideration for a record suspension or pardon, and should consult PBC’s website for more information.

What if I cannot recall the details of my conviction(s), such as the arresting police service or court of conviction?

If you cannot recall the details of your conviction(s), you may wish to request a copy of your criminal record from the National Repository of Criminal Records maintained by the Royal Canadian Mounted Police. Should you have a criminal record within this repository, it may assist you in your search for records.

Will members of the military convicted under the National Defence Act be eligible to have their record expunged?

Yes. The Government recognizes that military service members were also convicted of the offences of gross indecency, buggery and anal intercourse as a result of consensual same-sex sexual activity and that these offences were sometimes prosecuted under the National Defence Act. The schedule of eligible offences includes gross indecency, buggery and anal intercourse, or attempt to commit any of these eligible offences, whether they were prosecuted under the Criminal Code or the National Defence Act.

What is a "close-in-age" defence?

A "close-in-age" exemption prevents the prosecution of underage couples who engage in consensual sex when both participants are significantly close in age to each other and one or both are below the age of consent.

How will the applicant establish that the activity was consensual, between the same sex and that the other person involved was at least 16 years of age or subject to a "close-in-age" defence under section 150.1 of the Criminal Code?

This information is usually found in court records or transcripts and police reports. Copies of official documentation must be provided with the application for an expungement order. If these cannot be obtained from the courts or police because of retention periods or other, or if these are available but do not provide evidence that the criteria are met, the applicant must submit a sworn statement or solemn declaration.

How will the criteria be verified?

The process includes safeguards to ensure that only eligible convictions are expunged.

The onus is on the applicant to provide evidence that the criteria are met, and the PBC will do its due diligence to make necessary inquiries and to review all available information. Given the historical nature of the offences, if court or police records are not available, sworn statements/solemn declarations may be accepted as evidence.

Why will sworn statements/solemn declarations be accepted?

For offences involving sexual activity between same-sex partners, applicants need to provide evidence that the participants consented and were at least 16 years old or otherwise subject to a "close-in-age" defence under section 150.1 of the Criminal Code. This is normally done by providing copies of court and/or police documents, but given the historical nature of many of the convictions, it may not always be possible to obtain documentation or the documentation may be available but does not provide evidence that the criteria are met. In these cases, accepting sworn statements/solemn declarations helps ensure that historically unjust convictions can still be recognized and expunged.

In instances where a representative is applying on behalf of a deceased person, they may also need to provide a sworn statement/solemn declaration for the reasons noted above.

What is the difference between a sworn statement and a solemn declaration?

A sworn statement is an assessment of facts that are stated under oath – in an affidavit, for example. A solemn declaration is in lieu of an affidavit by a person conscientiously unable to take an oath. A person who makes a solemn declaration before an officer or person qualified to take affidavits has the same force and effect as if that person had taken an oath.

How will the Parole Board of Canada verify the authenticity of the sworn statement /solemn declaration, and that the applicant has made reasonable efforts to obtain the documents from the courts and police services?

The PBC may conduct an inquiry with courts and police services to verify information submitted by an applicant.

What documents can be provided to support your relationship in instances where an expungement order is being submitted on behalf of a deceased person?

Documentation acceptable to show proof of relationship could include a:

Canadian long-form birth certificate

Baptismal certificate with parent’s name

Official document that names the applicant as a parent

Adoption certificate

Land transfer certificate

Excerpt of relevant passages of a Will

Property certificate

Protection mandate

Power of attorney (or letter of attorney)

Letter of guardianship

Certificate of appointment of estate trustee

Court judgement designating a tutor or curator

Death certificate

Newspaper obituary

Funeral notice

Official Notification from the Public Trustee for a Province Registration of Death; or

What documents can be provided to confirm one-year cohabitation (living together) for a spouse or common-law partner in instances where an expungement application is being submitted on behalf of a deceased person?

Documentation acceptable to show proof of one-year cohabitation with the deceased person prior to death could include a:

Document showing a shared ownership of a residential property

Joint lease(s) or rental agreement(s) (in the name of the deceased person and the applicant)

Marriage certificate

Shared loan document (showing place of residence of deceased person and the applicant)

Who will be responsible for ordering expungement and expunging records?

The PBC will review applications and order or refuse to order expungement.

If an expungement is ordered, the RCMP will destroy or remove any record of the conviction in its custody. It will also notify any federal department or agency that, to its knowledge, has records of the conviction and direct them to do the same.

Relevant courts and municipal, provincial and territorial police forces will also be notified of the expungement order.

Which records will be destroyed?

When an expungement is ordered, the Parole Board of Canada will notify the Royal Canadian Mounted Police (RCMP) and any superior, provincial or municipal court that, to its knowledge, has custody of any judicial record of the conviction to which the expungement order relates. RCMP will notify federal departments and/or agencies as well as provincial or municipal police forces based on the above-mentioned criteria.

The Expungement Act requires that the judicial records of the conviction be destroyed or permanently removed from any federal department or agency’s databases. While relevant provincial/territorial courts and municipal, provincial and territorial police forces are not bound by the legislation, they may choose to destroy records of conviction in the spirit of the Act.

Judicial records of the conviction to be destroyed are documents that indicate that an individual was convicted of the expungable offence. Other records that may be linked to the investigation, arrest or prosecution of the individual but do not speak to a conviction, such as police records, witness statements, or court transcripts, may need to be retained in accordance with federal, provincial or territorial retention requirements.

How long will it take to process an expungement application?

The PBC will undertake to process expungement applications promptly. Applicants should also bear in mind that if their application is incomplete, or if additional research must be undertaken by PBC, this could impact time for processing.

Do I need to apply through a lawyer or a third party service company?

No. You can apply directly to the PBC. There is no processing fee to apply for an expungement order.

Using these companies will not give your application a special status, get it processed faster, or guarantee you expungement.

Expungement does not guarantee a person entry or visa privileges to another country. Before travelling, contact the authorities of the country you wish to visit to find out what you need to do to enter that country.

What is the difference between expungement and a record suspension/pardon?

The purpose of a record suspension/pardon is to remove barriers to reintegration that can be associated with a criminal record. If an application for a record suspension/pardon is approved, the entire criminal record is to be kept separate and apart. The criminal record can only be disclosed, ceased or revoked in certain circumstances. Record suspensions/pardons cannot be ordered posthumously.

For expungement, the Government recognizes that those whose record of conviction constitutes a historical injustice should not be viewed as "former offenders". Their conviction was for an act that should never have been a crime and had the conviction occurred today, it would likely be inconsistent with the Canadian Charter of Rights and Freedoms. If an application for expungement is approved, federal records of that conviction will be destroyed or removed. Unlike a record suspension/pardon, expungement is also available to those both living and deceased.

If you obtained a record suspension/pardon in the past for convictions that could now be eligible for expungement, please contact the PBC for further instructions.

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